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Kondapaneni Raghavaiah and anr. Vs. Inguva Lakshminarayana and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 7127 of 1954
Judge
Reported inAIR1955AP4
ActsCode of Civil Procedure (CPC), 1908 - Sections 151
AppellantKondapaneni Raghavaiah and anr.
Respondentinguva Lakshminarayana and anr.
Appellant AdvocateA. Subrahamnyam, Adv. for ;Rwo and ;Choudari, Advs.
Respondent AdvocateG. Chandrasekhara Sastry and ;K. Suryanarayana, Advs.
Excerpt:
property - grant of stay - section 151 of code of civil procedure, 1908 - application filed under section 151 for stay of proceedings - to attract provisions of section 151 there should not be any alternative remedy available and it should be very necessary to prevent abuse of justice - in present case dispute as to title of suit property intended to be sold - petitioners are interested in paying off decreed amount and avert sale in case appeal judgment is in their favour - held, in interests of public stay should be granted in sale proceedings till issue of title to suit property is resolved. - - two conditions have to be satisfied; so in my opinion, the interests of justice would be best served by directing stay......satyanarayana or the mortgagee from him, i.e., the 2nd respondent herein, is not a party to the suit or appeal, does not affect the question. so in my opinion, the interests of justice would be best served by directing stay. (4) the application for stay was not filed till the properties were brought to sale and the 2nd respondent incurred expenses for sale. i would, therefore, direct the petitioner to pay a sum of rs.100/- by way of costs of sale to the 2nd respondent herein within two weeks from today. so, i grant stay on condition of the petitioners paying rs.100/- to the 2nd respondent's advocate within two weeks. (5) i understand that the appeal washeard in part in 1953 and was referred to a bench. i direct that the apeal should be posted for hearing as early as possible after the.....
Judgment:
ORDER

(1) The appellant and the 4th respondent in A. S. No. 106 of 1950 filed C. M. P. No. 7127 fo 1954 under S. 151, C. P. C. to stay the proceedings in E. P. No. 98 of 1954 in O. S. No. 170 of 1950 on the file of the District Munsif's Court of Tenali, pending disposal of A. S. No. 106 of 1950 in the following circumstances:

(2) The 1st petitioner purchased the property which is the subject-matter of the dispute in the appeal, from one Satyanarayana, the adopted son of Narasimham. The plaintiff who filed O. S. No. 170 of 1950 claimed those properties from the widow of Narasimham and the Court below held that Narasimham's widow was absolutely entilted to the suit property and that Satyanarayana has no right to sell the property to the 1st defendant. He has, therefore, preferred A. S. No. 106 of 1950.

The 2nd respondent who is impleaded as a party to C. M. P. No. 7127 of 1954, is a mortgages from Satyanarayana. He filed a suit for the enforcement of his mortgage and obtained a decree in O. S. No. 170 of 1950 on the file of the District Munsif's Court of Tenali, impleading the petitioners herein, Satyanarayana and the 1st respondent herein as parties to his suiut. The 1st respondent herein contended that he was not a necessary party as he was not claiming title from Sastyanarayana, but only from his adoptive mother and the objection was upheld. The mortgagee is now proceeding to bring the mortgage properties to sale and hence the application for stay under S. 151, C. P. c., was filed in the appeal impleading the mortgagee-decree-holder as a party.

(3) The main contention of the learned Avocate for the petitioners is that if they succeed in the appeal and their title is upheld, they will deposit the mortgage amount due under the decree. If the appeal is dismissed, and the decree of the Court below that Satyanarayana has no title to the property is confirmed, they will not be bound to pay the amount in O. S. No. 170 of 1950. So they seek orders of stay under S. 151, C. P. C.

The learned Advocate for the respondents contends that the petition is not maintainable as the proceedings in O. S. No. 170 of 1950 on the file of the District Munsif's Court of Tenali, have become final, no appeal having been preferred therefrom and that the inherent powers of the Court ought not tobe exercised for granting stay in an appeal to which he is not a party. I do not agree with the contention of the learned Advocate for the respondent.

Mr. Justice Yahya All held in -- 'Balaji Rao v. Natesa Chetty', AIR 1948 Mad 138 (A) and -- 'Kumarappa Goundan v. Ramaswamy Goundan', AIr 1948 Mad 150 (B) that the High Court in exericse of its inherent jurisdiction can stay the trial of an independent suit in the course of the proceedings pending before it, if it is in the interests of justice or to prevent abuse of process of the court and there is no other remedy available to the applicant.

In order to attract the terms of S. 151, C. P. C. two conditions have to be satisfied; (1) that the applicant for stay has no other remedy availkable in law, which he can seek from a competent civil court, and (2) that the stay has to be ordered in the ends of justice or to prevent abuse of process of the court. The mere fact that the suit, the trail of which is sought tobe stayed, is an undependent suit and is not in any way connected with the suit under appeal has been held not to be a sufficient ground for denying the exercise of the power under S. 151, C. P. C.

Mr. Justice Somasundaram followed the two decisions of Mr. Justice Yahya All referred to supra in -- 'Ahmed Abdul Sukkoor v. Vallabhadas Kanji Firm', : AIR1950Mad219 (C). I agree with those decisions and hold that this court in the exericse of its powers under S. 151, c. P. c., is entitled to stay not only the trial of an independent suiut, but also proceedings in execution of a decree in an independent suuit. If this court is entitled to stay the trial of a suiut, there is no reason why it should have no power to stay te execution of a decree in appropriate cases. The reasoning contained in the decisions referred to supra equally applied to execution proceedings, if the interests of justice so require.

(3A) So theonly question that has to be considered in the present case is whether the facts warrant stay being granted. As the title of Satyanarayana has been found against, the petitioners herein are not now interested in averting the sale, but if they should succeed in the appeal, they would be vitally interested in paying off the amount due under the mortgage decre and prevent the sale. So till the question of title is decided by the High Court, it is not just and proper that the properties should be brought to sale. Moreover, it is not in public interests that a property which is found not to belong to Satyanarayana should be brought to sale in execution of the decree, in O. S. No. 170 of 1950 obtained by a mortgagee from Satyanarayana.

I do not agree with the contention of Mr. Chandrasekhara Sastri that the properties may be permitted tobe brought to sale, though there is a cloud on the title and purchased by a seculator for a slong. It is not proper that the property should be brought to sale when the question of title is still pending appeal in the High Court. The lmere fact that Satyanarayana or the mortgagee from him, i.e., the 2nd respondent herein, is not a party to the suit or appeal, does not affect the question. So in my opinion, the interests of justice would be best served by directing stay.

(4) The application for stay was not filed till the properties were brought to sale and the 2nd respondent incurred expenses for sale. I would, therefore, direct the petitioner to pay a sum of Rs.100/- by way of costs of sale to the 2nd respondent herein within two weeks from today. So, I grant stay on condition of the petitioners paying Rs.100/- to the 2nd respondent's advocate within two weeks.

(5) I understand that the appeal washeard in part in 1953 and was referred to a Bench. I direct that the apeal should be posted for hearing as early as possible after the re-opening of the High Court after Dasara Holidays.

(6) Order accordingly.


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